Citation Nr: 0727736
Decision Date: 09/05/07 Archive Date: 09/14/07
DOCKET NO. 04-03 640 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in
Seattle, Washington
THE ISSUE
Entitlement to a initial rating in excess of 30 percent
for post-traumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Harold A. Beach, Counsel
INTRODUCTION
The veteran, who is the appellant in this case, served on
active duty from February 1951 to February 1954. He had
service in the Korean conflict, during which he received
the Combat Infantryman Badge.
This matter came to the Board of Veterans' Appeals
(Board) on appeal from a February 2003 rating decision by
the RO.
In May 2007, the veteran had a hearing at the RO before
the Veterans Law Judge whose name appears at the end of
this decision.
In August 2007, the Veterans Law Judge granted the
veteran's motion to have his case advanced on the Board's
docket due to his advanced age. See 38 C.F.R.
§ 20.900(c) (2006).
FINDING OF FACT
Since service connection became effective April 10, 2003,
the veteran's PTSD has been manifested primarily by
emotional lability with periods of sadness and weeping;
mild memory loss; and avoidance of reminders of the
associated trauma and has been productive of mild to
moderate impairment.
CONCLUSION OF LAW
The criteria for an initial rating in excess of 30
percent for PTSD have not been met. 38 U.S.C.A. §§ 1155,
5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.2,
4.7, 4.130, Diagnostic Code 9411 (2006).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Duty to Assist
Prior to consideration of the merits of the veteran's
appeal, the Board must determine whether VA has met its
statutory duty to assist the veteran in the development
of his claim for an initial rating in excess of 30
percent for PTSD. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R.
§ 3.159.
In a letter, dated in August 2006, the RO informed the
veteran that in order to establish an increased rating
for PTSD, the evidence had to show that such disability
had gotten worse.
The RO notified the veteran and his representative of the
following: (1) the information and evidence that was of
record and was not of record that was necessary to
substantiate the veteran's claims; (2) the information
and evidence that VA would seek to provide, such as
records held by Federal agencies; (3) the information and
evidence that the veteran needed to provide, such as
employment records and records of his treatment by
private health care providers; and (4) the need to
furnish VA any other information or evidence in the
veteran's possession that pertained to his claims.
See Quartuccio v. Principi, 16 Vet. App. 183 (2002).
However, the RO stated that it was ultimately the
veteran's responsibility to make sure that it received
all of the requested records which weren't in possession
of the Federal government.
The RO told the veteran where to send the
information/evidence and set forth time frames for doing
so, as well as the potential consequences for failing to
do so. It also notified him of what to do if he had
questions or needed assistance and provided a telephone
number, computer site, and address where he could get
additional information.
Generally, the notice required by 38 U.S.C.A. § 5103(a),
must be provided to a claimant before the initial
unfavorable agency of original jurisdiction (AOJ)
decision on a claim for VA benefits. Pelegrini v.
Principi, 18 Vet. App. 112 (2004).
In this case, however, the notice with respect to the
claim for an increased rating for PTSD was not sent to
the veteran until after the February 2003 rating action
in which service connection for PTSD was granted and the
30 percent rating was assigned. Moreover, that rating
was confirmed and continued by the RO the following
month. Nevertheless, any defect with respect to the
timing of the duty to assist notice was harmless error.
In order to cure a notice timing defect, a compliant
notice must be issued followed by the readjudication of
the claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed.
Cir. 2006) (Mayfield II).
Not only did the August 2006 notice comply with the
requirements of 38 U.S.C.A. § 5103, 5103A and 38 C.F.R. §
3.159, it informed the veteran that a disability rating
and an effective date for the award of benefits would be
assigned if the benefits sought on appeal were awarded.
See Dingess/Hartman v. Nicholson, 19 Vet. App. 473
(2006).
Moreover, the RO granted the veteran additional time to
develop the record. The veteran and his representative
submitted argument in support of the veteran's appeal,
and the RO received a substantial amount of evidence.
Prior to August 2006, evidence on file consisted of a May
2002 statement from the veteran's wife; records and
statements from the Vet Center, reflecting the veteran's
treatment from November 2001 through November 2005; VA
outpatient records, reflecting the veteran's treatment
from January 2002 through September 2003; and reports of
VA psychiatric examinations, performed in August 2002 and
February 2006.
Following the August 2006 notice, the RO received VA
outpatient records, reflecting the veteran's treatment
from June 2006 through April 2007; the report of a VA
psychiatric examination, performed in February 2007; and
additional records and statements from the Vet Center,
reflecting the veteran's treatment through May 2007.
The veteran also had an opportunity to present his case
at a May 2007 hearing before the undersigned Veterans Law
Judge. As a result of that hearing, the Veterans Law
Judge left the record open for the submission of
additional information and evidence. In response, the
veteran submitted records reflecting his treatment from
January 2003 through May 2007, at or through the
University of Washington.
In light of the foregoing, the Board is of the opinion
that the veteran has had ample opportunity to participate
in the development of his appeal. Such opportunity
eliminates the possibility of prejudice in deciding the
veteran's appeal and ensures the essential fairness of
the decision.
Indeed, after reviewing the record, the Board finds that
VA has met its duty to assist the veteran in the
development of evidence necessary to support his claim.
It appears that all relevant evidence identified by the
veteran has been obtained and associated with the claims
folder. In this regard, he has not identified any
further outstanding evidence (that has not been sought by
VA), which could be used to support his claim.
Given the efforts by the RO to develop the record, there
is no reasonable possibility that further development
would lead to any additional relevant evidence with
respect to the issue of an increased rating for PTSD.
Therefore, further action is unnecessary in order to meet
VA's statutory duty to assist the veteran in the
development of that claim. See, e.g., Sabonis v. Brown,
6 Vet. App. 426, 430 (1994) (remands that would only
result in unnecessarily imposing additional burdens on VA
with no benefit flowing to the appellant are to be
avoided). Accordingly, the Board will proceed to the
merits of the appeal.
II. The Facts and Analysis
Disability evaluations are determined by comparing the
manifestations of a particular disability with the
criteria set forth in the Diagnostic Codes of the
Schedule for Rating Disabilities. 38 U.S.C.A. § 1155, 38
C.F.R. Part 4 (2006).
PTSD is rated in accordance with the criteria set forth
in 38 C.F.R. § 4.130, Diagnostic Code 9411.
A 30 percent rating is warranted when there is
occupational and social impairment with occasional
decrease in work efficiency and intermittent periods of
inability to perform occupational tasks (although
generally functioning satisfactorily, with routine
behavior, self-care, and conversation normal), due to
such symptoms as: depressed mood, anxiety,
suspiciousness, panic attacks (weekly or less often),
chronic sleep impairment, mild memory loss (such as
forgetting names, directions, recent events). 38 C.F.R.
§ 4.130, Diagnostic Code 9411.
A 50 percent rating is warranted when there is
occupational and social impairment with reduced
reliability and productivity due to such symptoms as:
flattened affect; circumstantial, circumlocutory, or
stereotyped speech; panic attacks more than once a week;
difficulty in understanding complex commands; impairment
of short- and long-term memory (e.g., retention of only
highly learned material, forgetting to complete tasks);
impaired judgment; impaired abstract thinking;
disturbances of motivation and mood; and difficulty in
establishing and maintaining effective work and social
relationships. Id.
The percentage ratings represent, as far as can
practicably be determined, the average impairment in
earning capacity (in civilian occupations) resulting from
service-connected disability. 38 C.F.R. § 4.1.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned
if the disability picture more nearly approximates the
criteria required for that rating. Otherwise, the lower
rating will be assigned. 38 C.F.R. § 4.7.
The RO's February 2003 decision on appeal, which granted
entitlement to service connection for PTSD and assigned a
30 percent rating was an initial rating award.
When an initial rating award is at issue, a practice
known as "staged" ratings may apply. That is, at the
time of an initial rating, separate ratings can be
assigned for separate periods of time based on the facts
found. Fenderson v. West, 12 Vet. App. 119 (1999).
Nevertheless, the Board has reviewed all evidence of
record pertaining to the history of the service-connected
PTSD. 38 C.F.R. §§ 4.1 and 4.2 and Schafrath v.
Derwinski, 1 Vet. App. 589 (1991).
In this case, the preponderance of the evidence shows
that the veteran's PTSD is manifested primarily by
emotional lability with periods of sadness and weeping;
mild memory loss; and avoidance of reminders of the
associated trauma. The VA treatment record, dated in
January 2002, and the reports of the VA psychiatric
examinations show that his GAF ranges from 55 to 65.
The score on the veteran's GAF (Global Assessment of
Functioning) Scale is significant in properly evaluating
the level of impairment caused by PTSD. That scale is
found in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL
DISORDERS 32 (4th ed. 1994) (DSM-IV) and reflects the
"psychological, social, and occupational functioning on a
hypothetical continuum of mental health illness." See
Richard v. Brown, 9 Vet. App. 266, 267 (1996).
The nomenclature in DSM IV has been specifically adopted
by VA in the evaluation of mental disorders. 38 C.F.R. §§
4.125, 4.130 (2006).
A GAF score of 61 to 70 reflects some mild symptoms, or
some difficulty in social, occupational, or school
functioning, but generally functioning pretty well, with
some meaningful interpersonal relationships. DSM IV at
32.
A GAF score of 51 to 60 indicates moderate symptoms, or
moderate difficulty in social, occupational, or school
functioning. Id.; see Carpenter v. Brown, 240, 242
(1995).
Thus, the veteran's GAF reflects a mild to moderate
degree of impairment due to PTSD. Although the veteran's
counselor, a readjustment counseling therapist, at the
Vet Center considers the veteran essentially unemployable
due to PTSD, the preponderance of the evidence shows that
the veteran's level of impairment does not more nearly
reflect the criteria for a rating higher than 30 percent
under 38 C.F.R. § 4.71a, Diagnostic Code 9411.
Indeed, the veteran does not demonstrate the schedular
criteria for the next higher rating. Generally, he does
not present a flattened affect; circumstantial,
circumlocutory, or stereotyped speech; panic attacks more
than once a week; difficulty in understanding complex
commands; impairment of short- and long-term memory
(e.g., retention of only highly learned material,
forgetting to complete tasks); impaired judgment;
impaired abstract thinking; and difficulty in
establishing and maintaining effective work and social
relationships.
Rather, the veteran is coherent, responsive, and well-
oriented, and he maintains good grooming and personal
hygiene. His thinking is logical and goal-directed, and
he does not present any delusions or hallucinations, nor
does he express any homicidal or suicidal ideas.
In this regard, a review of the evidence during the
appeal period reflects that the veteran was examined by
VA in August 2002, at which time mental status evaluation
revealed that he was oriented, well groomed, had adequate
fund of knowledge, organized speech, and no indication of
a delusional disorder or organicity. His mood was
pleasant but tearful when discussing stressors.
Reportedly he was retired from his job and receiving
Social Security benefits. He avoided traumatic stimuli,
and had episodic sleep disturbance, and a mild restricted
range of affect, as well as mild irritability and
vigilance. The symptoms were felt by the examiner to be
of mild to moderate severity. The GAF score was 55-60.
VA outpatient records dated during the period from 2003
to 2005 reflect some improvement in symptoms with the
use of prescribed medication, although the veteran
periodically experienced sadness and crying episodes. He
was encouraged to take his medication with more
regularity since doing so would result in less
irritability, fewer crying spells, and better sleep.
At the time of VA examination in February 2006, it was
noted that the veteran continued to endorse such symptoms
as weeping and sad mood, avoidance of public events,
persistent recollections of stressors, distressing
dreams, and physiological reactivity to traumatic events.
However, mental status evaluation was essentially normal
with the exception of the veteran's reluctance to discuss
traumatic events. The examiner noted that the GAF score
was 65, that the veteran had occasional inference in
performing the activities of daily living, and that while
his prognosis is good, he needed to cooperate more with
the tailoring of his medications to improve symptoms.
At the time of another VA examination, in February 2007,
the examiner noted that a review of the veteran's records
had been undertaken. According to the veteran, since
developing his mental condition, there had been major
changes in his daily activities, such decreased appetite,
less enjoyment of activities, loss of energy, decreased
concentration, and psychomotor retardation. During
examination, there was some evidence of difficulty
understanding complex commands, signs of suspiciousness,
mild memory impairment. There were symptoms indicative
of PTSD. The examiner noted that the veteran's symptoms
appeared to have worsened slightly since the last
examination. The GAF score was 60.
Records from the University of Washington, Federal Way
Clinic, covering the period from January 2003 to May
2007, do not reflect any treatment for psychiatric
symptoms, although these indicate that the veteran was
being treated by VA with medication. These records
describe the veteran as being in no acute distress,
pleasant and apparently healthy. In April 2004, on a
depression screening, the veteran reported that he was
depressed most of the time; in July 2005, he denied
depression. On the latter occasion he stated that he
felt well and did not regularly use the medication
prescribed by VA.
Under such circumstances, the Board finds that the
preponderance of the competent evidence of record
supports a 30 percent rating, and no more, for the
veteran's PTSD.
In arriving at this decision, the Board has considered
the possibility of assigning staged ratings. However,
the degree of impairment due to PTSD has been generally
consistent since April 2002, the date that the 30 percent
rating for PTSD became effective. Accordingly, staged
ratings will not be assigned. Fenderson.
ORDER
An initial rating in excess of 30 percent for PTSD is
denied.
____________________________________________
N. R. ROBIN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs